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(영문) 서울북부지방법원 2013. 01. 18. 선고 2012가단105694 판결

사해행위 부동산을 피고에게 처분한 행위는 원고를 해함을 알면서 행한 사해행위에 해당함[국승]

Title

The act of disposing of real estate to the defendant constitutes a fraudulent act with knowledge that it would prejudice the plaintiff.

Summary

Since the act of disposing of real estate to the defendant constitutes a fraudulent act committed while knowing that it would prejudice the plaintiff, it shall be deemed that the defendant was also aware of such fact, the sales contract concluded regarding real estate shall be revoked, and the cancellation of the ownership transfer registration shall be sought by the method of restitution due to the revocation of

Cases

2012 Ghana 105694 Revocation of Fraudulent Act

Plaintiff

Korea

Defendant

KimA

Conclusion of Pleadings

Pleadings without Oral Proceedings

Imposition of Judgment

January 18, 2013

Text

1. With respect to real estate listed in the separate sheet, and

(a) cancel the sales contract concluded on December 1, 201 between the Defendant and the UB and the UB, and, at the same time, cancel the sales contract;

B. On December 30, 2011, the Defendant shall implement the procedure for registration cancellation of ownership transfer registration that was completed on December 30, 201 by the Seoul Northern District Court Dobong Branch of Seoul Northern District Court No. 85878.

2. The costs of the lawsuit are assessed against the defendant.

Purport of claim

The same shall apply to the order.

Reasons

1. Indication of the claim;

The reasons for the attached Form shall be as shown in the attached Form.

2. Judgment without any pleadings (Article 208, paragraph 3(1), and Article 257, of the Civil Procedure Act)

Text

1. Formation of tax claims;

(a) Claims for preservation;

At present, the Plaintiff has a claim for value-added tax and global income tax amounting to KRW 111,868,850 in total, 111,868,850 against Non-Party B (hereinafter referred to as “B”), as shown in Table 1-B, and PostalB is in default due to its failure to comply with it at will. (No. 1-1, No. 1-2)

Table 1:B's exemption from the amount of national taxes in arrears as of July 4, 2012

(b) The right to be preserved for revocation of fraudulent act;

Although the issue of the Plaintiff’s taxation claim against DoB was after the date of the fraudulent act in this case, the national tax claim against DoB may be the preserved claim against the right to cancel the fraudulent act in accordance with the following legal principles.

Although it is necessary to say that a claim that can be protected by the plaintiff's right of cancellation was created prior to the commission of a fraudulent act as a matter of principle, it is highly probable that the legal relationship which serves as the basis of the establishment of the claim has already occurred at the time of the fraudulent act, and that it would be established in the near future because the possibility is realized in the near future, the claim may also become a preserved claim, and the legal relationship that serves as the basis of the establishment of the claim shall not be limited to the legal relationship under the agreement between the parties, but shall be widely included in the quasi-legal relationship or fact-finding with the probability of the establishment of the claim (Supreme Court Decision 2002Da42957 delivered on November 8, 2002). In accordance with the above legal principles, in order of the above legal principles, it is highly probable that national tax liability has already been established prior to the date of the fraudulent act in the near future, and national tax notice in this case should be revoked in full. Accordingly, it is impossible that national tax notice in this case is national tax.

2. Fraudulent act;

The head of the Dobong Tax Office(hereinafter referred to as the "Plaintiff") issued a prior notice of tax investigation to the BaB prior to the commencement of the tax investigation. On December 16, 2011, the Dobong Tax Office, which received the prior notice of tax investigation, became aware that the tax amount will be later notified due to the tax investigation, and then, he intentionally avoided the disposition on default by transferring the ownership of the real estate listed in the attached Table 2 to the Defendant, as shown in the attached Table 2.

Table 2: Omission of the disposal of the property by the PostalB;

As above, on December 16, 201, PB received a prior notice of tax investigation from the Plaintiff on December 16, 201, and then expected to later notify the Plaintiff of the amount of taxes, and knowingly disposed of the real estate listed in the separate sheet to the Defendant, who is a related party, on the grounds of trade. Accordingly, the Plaintiff, a tax claim, becomes liable for the satisfaction of the tax claim.

(A) Evidence 2-1 to A 2-3)

3. Reduction of responsible property;

eB prepared a real estate sales contract with the Defendant to dispose of the instant real estate in collusion with the Defendant, and completed the registration of ownership transfer in the name of the Defendant. At the time of disposal, the instant real estate reduced the liability property of KRW 000 on the ground that there was a collateral security obligation (the maximum amount of the claim, KRW 000, KRW 000) with the KoreaCC Bank as a collateral security (the actual amount of the claim, KRW 2-3, and KRW 2-4).

4. Excess of debts;

(a) Active property;

On December 1, 2011, NoB had no real estate other than the attached list, which is the real estate of this case disposed of to the defendant, as shown in the "Report on the Status of Data on Property, etc. of Delinquent Taxpayers", and there was no other active property (No. 3-1).

B. Petty property

At the time of the fraudulent act in this case, the third party's passive property was 000 won in total as shown in the attached Table 1, which is the preserved claim for the fraudulent act in this case, and the third party's obligation of collateral security of the KoreaCC Bank (00 won -000 won) as stated in the attached Table 1, which is the aggregate of the notified tax claims in the attached Table 1, and transferred to the defendant by sale and purchase. Accordingly, due to the fraudulent act in this case, the non-party in arrears caused the excess of the debt amount of KRW 000 (00 -00 won), and the plaintiff was finally unable to satisfy the tax claim. (No. 2-3 and No. 3-2)

5. The intention of an injury.

B. On December 16, 2011, after receiving a prior notice of tax investigation from the Plaintiff and recognizing that the amount of taxes would be imposed upon the Plaintiff’s subsequent tax investigation, the Defendant conspired with the Defendant to purchase and sell the real estate stated in the attached list, which was acquired at KRW 000 on June 1, 201, to purchase and sell KRW 00,00,00, and to dispose of it on December 30, 201 after completing the registration of ownership transfer on December 30, 201. As such, the Defendant was aware that the Defendant’s disposal of the real estate of this case was harmful to the Plaintiff as the tax payer. (No. 2-3 and No. 2-4)

6. Bad faith of the defendant

A. As above, the defendant's bad faith will will be presumed if it is recognized by PostalB's intention. (Supreme Court Decision 97Da6711 Decided February 13, 1998) The defendant is entitled to acquire real estate listed in Postal List as 28 years of age and 2003, since 2003, as a person who does not have income sources until now, and thus, he was transferred the ownership due to a trade of real estate listed in Postal List. (No. 4-1)

B. The defendant would have known the fact that the sale of real estate listed in the separate sheet was a fraudulent act at the time of the transfer of ownership by UB's ChoB's Madd's Mad's Mad's Mad's Mad's Mad's Mad's Mad's Mad's Mad'

7. The date on which he becomes aware of a fraudulent act;

On April 18, 2012, when taking a disposition on default of national taxes against eB, the notice of the current status of data on the property of delinquent taxpayers, etc. was printed out to confirm the property of non-party delinquent taxpayers, and to peruse the registry of the real estate of this case and became aware that the real estate of this case was transferred to the defendant who is a person with a special relationship. The date when the fraudulent act of this case was committed is December 1, 201, and the date when the reason for revocation of the fraudulent act was known is April 18, 2012, and it falls within five years from the date when the fraudulent act was committed, and one year from the date when the cause for revocation of the fraudulent act was known, and thus, the period for exclusion of the lawsuit of this case was not over. (No. 3-1)

8. Conclusion

In light of the above facts, it shall be deemed that the UB’s act of disposing of the real estate of this case to the Defendant constitutes a fraudulent act committed while knowing that it would prejudice the Plaintiff, and the Defendant also knew the fact. Therefore, the Plaintiff’s revocation of the sales contract concluded between the Defendant and the UB as stated in the separate sheet, such as the purport of the claim, and sought cancellation of the ownership transfer registration for the real estate in the separate sheet by seeking cancellation of the ownership transfer registration for the real estate in the method of restitution due to the revocation of fraudulent